“Ryan Braun‘s explanation was that this was money (reportedly $20,000 to $30,000) owed Tony Bosch for consulting for his appeal of his positive drug test that he had overturned last winter. This should be easily provable by Braun’s attorneys … They should have correspondence with Bosch, hiring him as a consultant, paying him as a consultant. They should have their own records, so this is a good time for them to come forward and back their client…They should back it up with their proof and be done with it.”

If Bosch was a consultant — and one of Braun’s attorneys did admit that he spoke with Bosch, even if he said Bosch’s help was “negligible” — the communications between them are protected by the attorney-client privilege and by the work product privilege. It would be an ethical violation and a grounds for discipline by the state bar for Braun’s attorneys to release such information. It would also give Braun the right to sue his own attorneys.

I’m pretty sure Tom Haudricourt would never demand that one of his colleagues in the press reveal his source or his reporter’s notes simply because the subject matter suddenly becomes interesting. In light of that I’m rather surprised that he’d so cavalierly demand that an attorney abandon his legal and ethical obligations like this.

Or it’s quite possible that Haudricourt has no idea what he’s talking about and his demand here is made out of ignorance of the legal system as opposed to his disregard for it.

This is an absolutely ridiculous statement. If a party has no right to the information they are requesting, why should the opposing party waive a perfectly valid, legal, and/or constitutional right merely to placate those who make the request? Would you? Because a waiver of privilege potentially carries with it a host of other consequences.

I harbor no goodwill for any suspected PED user (and I tend to think Braun isn’t Mr. Clean), but this type of logical reasoning regarding “nothing to hide” that is simply flat wrong. If, for the sake of argument, the IRS had some “issues” with deductions and income reporting, does that mean that you should voluntarily submit yourself for an IRS audit each year to demonstrate that you have nothing to hide? If you get divorced with your significant other, and it is contentious, after the proceedings are over, should you regularly submit financial disclosures and/or tax returns to the opposing party to demonstrate “nothing to hide.” I sincerely doubt that those demanding Braun, or any other party, waive their valid rights would do the same in a thousand years if in a similar position.

Of what use are the rights and protections allotted to all people either by statute or the constitution if we so cavalierly demand that people waive their rights – for what – to satisfy the curiosity of journalists and or Joe Public?

Haven’t we seen countless times that these types of investigations should be conducted with a modicum of privacy, free from the court of public opinion until such time as legitimate findings are made?

You’re absolutely correct that no one has any right to this information. 100%.

But if I were an MLB MVP who tested positive for doping, and got off on a chain of custody technicality, and then a year later my name came up in an investigation of a known MLB PED supplier who lived across the country from me, and it would help legitimize my use of this “hormone replacement specialist” who just happens to do the same thing I tested positive for to other MLB stars, then I’d release the supporting documents in a second to help clear my name.

Chain of custody dismissal does not equal a techinicality. The rules exist due to the fact that myriad things can happen in the interim that would otherwise contaminate or alter the evidence which was to be tested. As I said above, I don’t think he’s clean. I do, however, firmly believe he’s entitled to the protections of the CBA, the law, and rights affored by the foundational documents, as is everyone else.

Otherwise, we’re a nation of “sometimes enforceable rules” and not laws.

tubal22 - Feb 6, 2013 at 1:16 PM

You’re correct again that a chain of custody dismissal isn’t normally a technicality.

But I think in this case it was a technicality. The courier used industry standard practices. There was no motive or accusation that the courier tampered with the sample. There was no evidence that the tamper proof seal was every tampered with, which is a double check on the chain of custody.

The technicality was that the sample was taken on a Friday and it was too late to drop in the mail, so it sat in a fridge over the weekend and sent the following Monday. Which is the normal practice.

If I remember correctly, the courier didn’t necessarily violate the procedures set forth in the CBA. The procedures were somewhat ambiguous as to what to do in those specific circumstances, and the rules were re-written afterwards to make it clear.

If Braun does allow his attorneys release the evidence, plenty of people will scream “Fake”, so whatever. When someone has some actual proof or an actual link implicating Braun in receiving PEDs, then sure, lets debate this. Otherwise, meh.

There was proof. His sample tested positive. He got off on a technicality, and he shouldn’t have even got off because his sample was handled according to best practives. And now a year later, his name is found in the records of a known PED supplier 2,000 miles away that seemingly wouldn’t have anything to do with him, his attorneys, or any other legitimate medical reason. And he just happened to use him as a “consultant”. Ok. Keep drinking the Kool-Aid.

This is proof in your world? Ok. Lets hope your people don’t ever assume you did something wrong because your name turns up in someone’s records.

chadjones27 - Feb 6, 2013 at 12:09 PM

Let me guess, you’re one of those “birthers” as well…

churchoftheperpetuallyoutraged - Feb 6, 2013 at 12:26 PM

that seemingly wouldn’t have anything to do with him, his attorneys, or any other legitimate medical reason.

This is only true if you ignore the dozens of posts/comments/tweets/etc that show the connection between the two of them. Or are you the type who sticks his fingers in his ears going “la la la i’m not hearing you” when someone gives you information that you don’t want to know about?

Chris Fiorentino - Feb 6, 2013 at 12:26 PM

cur, I’m just curious because you are one of the more intelligent people on this board and I respect your opinion. Tell me the ways Braun’s sample could have become tainted? Give me every single way you can think of that Braun’s sample could have contained the banned substances in it.

You know that I admit when I don’t know something, as paperbag has beaten to death with my stupid questions about HGH. So when I say that either someone maliciously tainted Braun’s sample or it magically grew the banned substance while sealed, I would be willing 100% to admit that I am wrong if someone can come up with another way the sample contained the banned substance when it reached the lab.

Because as far as I can tell, Braun either pissed it because he was taking it, someone framed him, or it magically grew in the sealed container that the testing lab felt was good enough to test.

thanks in advance, cur.

tubal22 - Feb 6, 2013 at 12:38 PM

@church

I’d be interested to see links.

From Braun:

I have nothing to hide and have never had any other relationship with Bosch”

From Braun’s attorney:

“I was not familiar with Tony Bosch prior to Ryan Braun’s case. Bosch was introduced to me at the earliest stage of Ryan’s case.

“I found Bosch’s value to be negligible and I followed my prior practice of relying on Aegis in the preparation of Ryan’s winning defense.”

I don’t see where they had any other connections?

cur68 - Feb 6, 2013 at 12:58 PM

@Chris: nope. I’m not going back down this road. Know why? I don’t have all the facts nor am I a doping expert. What this means is that its sheer speculation on my part and I’d rather not have my speculation be taken as some sort of “fact”. The independent authority WITH the facts decided the test was carried in an improper manner. Good enough for me. The End.

churchoftheperpetuallyoutraged - Feb 6, 2013 at 1:01 PM

I don’t see where they had any other connections?

Why do they need more connections? The one connection that is quoted in this exact post mentions that they consulted with the doctor in regards to the PED challenge. Why do we need more information?

tubal22 - Feb 6, 2013 at 1:23 PM

@church

Braun said they consulted Bosch.

His attorney said:

“I was not familiar with Tony Bosch prior to Ryan Braun’s case. Bosch was introduced to me at the earliest stage of Ryan’s case.

“I found Bosch’s value to be negligible and I followed my prior practice of relying on Aegis in the preparation of Ryan’s winning defense.”

Which could mean a number of things.

Chris Fiorentino - Feb 6, 2013 at 1:46 PM

OK, cur, that’s cool with me. You choose to throw out the entire test, as if Braun never pissed in a cup that night at all. Your choice. I choose to acknowledge that he did piss in a cup, that cup did contain urine that tested positive for a banned substance, and want to know how that banned substance got in there. What’s so wrong with my stance, if anything in your eyes? Do you respect my stance, or do you think I should think like you and assume the test never happened? Just curious.

cur68 - Feb 6, 2013 at 2:16 PM

Chris: I’m supposed to have an opinion without access to the facts? Boy, that’s asking a lot.

Look at it this way: I don’t know who did what after Braun pissed in that cup and I don’t know what happened then with the MVPP. Those facts were never made public by a named, impartial and reputable source. If you don’t know what the chain of custody was, and the guy who DOES know that stuff decided that it was handled improperly, why would you go around placing all or any of your faith in those tests?

Now, if I HAD the facts and had the Arbiter’s line of reasoning, then yeah, I’d make with an opinion. BUT absent the establishment of a clear and proper chain of custody, the tests are immaterial. Without the Arbiter’s report, I’m forced to go with the Arbiter’s view of the evidence. He had the facts, we do not. He ruled the tests inadmissible as evidence of guilt. Once again, The End.

Chris Fiorentino - Feb 6, 2013 at 2:32 PM

Thanks cur. I disagree, but respect your view.

raysfan1 - Feb 6, 2013 at 10:47 PM

Chris,
I know you asked cur68 and not me, but let me provide my view anyway.

You states that there are three possibilities with Braun’s sample from 2011–that he used PEDs, that the excessive testosterone appeared magically, and that the sample was maliciously tainted/he was framed. I agree with you–those are the possibilities. The problem is that there should only be two–he did the deed or magic. Not following the proper procedures is what introduces the third possibility. All that is required to allow the arbitrator to throw out the sample is the introduction of reasonable doubt. Magic is not reasonable doubt. However, it is very easy to obtain urine vials and labels, making forging a sample possible, regardless of how unlikely that might be.

Now, is him getting off a technicality? I won’t argue that as I don’t think that’s relevant, and the term has no specific legal definition–meaning we could argue endlessly about what a technicality is and both be “right.”

Does this leave things such that people can think he’s guilty anyway? Of course. Even in criminal trials, the verdict for an acquittal is “not guilty” and not “innocent”–meaning anyone can always argue that about every case.

nbjays - Feb 7, 2013 at 8:23 AM

Let’s not lose sight of the fact that, had all the proper procedures in the testing program been followed to the letter, none of us would be discussing this at all.

Why?

Because, had all the proper procedures been stringently followed, nothing would have ever come out about this. If a player fails a test, then appeals, and that appeal is upheld, the confidentiality rules prohibit any release of information. Only after a player has admitted to a violation or has appealed and had it denied, should anything be released.

As long as that rotation stays healthy, I think we can expect at least what we saw last season.

Also, 18 games against the Marlins will help. But we’ll miss the 12 games against the Astros.

echech88 - Feb 6, 2013 at 11:45 AM

Ugh. The worst part is that the beat writers have the undivided attention of many of their market’s fans/readers and that a very small % will ever see something like this blog post that picks apart faulty logic.

Baseball writers are the worst. Too much emotional investment and not enough objectivity…or in this case, a simple call to a lawyer to verify his article’s main idea/point.

If every person of interest had to placate every jackass that wanted to know everything interesting about them, Donald Trump would be holding Barack Obama’s elementary school transcript in his hand right now.

Ridiculous! Bosch isn’t even a doctor, what possible worth could he be in that kind of case? A freaking anti-aging non-doctor.

“Your honor, I’d like to call a quack fake doctor malpractice waiting to happen, who’s some kind of underground expert on testosterone.”

……. right, lets get that guy involved in our PED case. And on top of that pay him any amount of money. Sorry but that excuse is ####### preposterous.

paperlions - Feb 6, 2013 at 3:25 PM

Sports writers are not doctors either, and yet almost everything you think you know about PEDs probably came from a sports writer, and what sports writers commonly write about PEDs is almost all incorrect….and easily verifiably incorrect.

cur68 - Feb 6, 2013 at 12:02 PM

Bosch’s ego appears to have been incredible. Did you see the stuff he wrote about himself? I can see a guy who was given to writing notes like this about himself ,

“Dr. Tony Bosch is recognized as an international educator and world-class leader in bio-identical hormone replacement therapy,” reads one description, which also praises him as a “pioneer in orthomolecular medicine” and calls him a “molecular biochemist.” http://deadspin.com/anthony-bosch/

Doesn’t this sound EXACTLY like the ego of another PED peddling “Doctor” named Victor Conte? His ONLY goal was to create a super athlete. I’m not saying that Bosch and Conte are the same person, however, any professional athlete with their cadre of litigators ( “researching” for a steriod case) would have found that his work and total b.s. title were insufficient to make any testimony that he offered not worth a dime? I’m not saying that Braun used or didn’t (I believe that he has but for the sake of arguement I’ll remain neutral) but there is a line between gullible, for believing for a second Bosch was legit, and a large lump sum payment to said doctor.

churchoftheperpetuallyoutraged - Feb 6, 2013 at 12:28 PM

that seemingly wouldn’t have anything to do with him, his attorneys, or any other legitimate medical reason.

$30K is 0.5% of Braun’s $6M gross salary last year. For reference, that’s the same as a $250 bill to someone making $50,000 a year. If you were in trouble with your employer and needed to hire someone to help you, would $250 be too much?

“Or it’s quite possible that Haudricourt has no idea what he’s talking about and his demand here is made out of ignorance of the legal system as opposed to his disregard for it.”

Craig, I would suspect it’s more likely this. Why would he be expected to know where the precise boundaries of a lawyer’s legal and ethical responsibilities lay? What he’s saying *sounds* like a reasonable thing to a non-lawyer – hey, there’s gotta be some phone records, maybe general contract/billing information between the lawyers and a consultant – doesn’t necessarily scream out “violates attorney-client privilege!” to a layman.

It’s certainly not as bad as brazenly suggesting that the Yankees and A-Rod commit insurance fraud.

Because much like paperlions has been ranting about for a couple of weeks regarding medical questions, how difficult is it to contact someone who is an expert to find out if what you are suggesting is (il)legal?

Okay, maybe a little. But really, if you care at all about an issue, it doesn’t take that much effort to track down actual information on which to base an opinion….though you do have to be careful with regard to the sources of that information, especially if you are trying to understand in layman’s terms, as there is a lot of disinformation available from people trying to convince you to buy something.

For a group of sports writers and the resources they have available, their complete lack of fact checking is disturbing.

zzalapski - Feb 6, 2013 at 12:31 PM

Good lord, spring training needs to start soon, if only so that baseball writers can go back to writing about something they know a little more than next to nothing about.

Surely….it is too much of a logical jump to suggest that Hardicourt meant that the lawyers should provide documentation of that information to their client…..so that the client may relay it to the media, which clearly does not violates any legal rule of ethics.

I completely don’t understand the rush to throw stones at the press. There is an awful lot of “smoke” around Ryan Braun for there to be no “fire.” It’s only natural for the press to pursue this story….in fact, intelligent readers demand that they do it. I realize it’s easy to criticize reporters via a blog (especially when you think that PEDs aren’t a huge problem…and that everyone should chill out about them) but they have a job to do. And the reporters that are pursuing this story have done nothing atrocious (yet).

How about, as a reporter, you just report on the facts and leave the opinions to others? Do people realize that the “evidence” in all of these reports is handwritten notes with incorrect dates on them? It’s not like the Miami Times found a detailed excel spreadsheet with pivot tables and vlookup formulas dispersed throughout. For pete’s sake, there’s a Dear John letter included in the evidence! (h/t to one of the TPA guys, either Bill or TCM on twitter, can’t remember).

Since we are a society of guilty before proven innocent and love to speculate, why don’t we just assume his test was for “greenies”. . . a positive test is a positive test. Yes the same greenies that were ramped throughout baseball in the 70’s and 80’s and the same ones that are on the banned list.

All I’m really saying is that nobody knows the truth and everyone has an opinion.

What are his credentials? I’m afraid I’m going to have to see his resume before I’m permitted to consider his opinion. Has he ever litigated or consulted a day in his life?? Does he know the first thing about the law in these kinds of cases??

If Tony Bosch served as a consultant to Braun’s legal team he would likely be considered a “Kovel” consultant and his advise would be protected under attorney-client privilege. However, not all communications between a lawyer and a “Kovel” consultant are privileged. Communications that go to the existence of such a relationship or duration of such a relationship are not privileged.

Now – I am not suggesting that Braun’s attorneys should provide any communications related to Bosch. However, they cannot stand behind A-C privilege as an absolute shield. Letters or emails retaining Bosch’s services are not privileged.

This is the most ridiculous thing- OF COURSE A LAWYER ISNT GOING TO PROVIDE DOCS WITHOUT THEIR CLIENTS APPROVAL.

The baseball writer wasnt suggesting that at all- complete strawman and the silliest example i have seen in awhile. If you were on Braun’s legal and repping team- and if what Braun said was the truth; It would make complete sense for “them”, meaning lawyer and Braun the client- to release the receipts. – It would be in Brauns best interest to prove this consulting relationship because there will be negative financial consequences to this. But they won’t because it is all a lie that Braun made. If Braun lied then the lawyer’s job would be confuse the issues to distract everyobne and just point to privilege.

Silly laypeople will buy it- just as we are witnessing here on this board.

I wonder if baseball writers have the largest quality gulf between the best and the worst (I realize politics has a pretty big gulf, too).

The popularity of the Sabermetrics movement (and the internet) seems to have led to a lot of very intelligent people becoming baseball writers. So, the level of excellence of the best is now very high.

The level of worst is very low. It’s probably the same as it’s always been, it’s just that we can read them all because of the internet. (The worst are actually probably a little better than they used to be, we’re just lucky we couldn’t read all the sports sections 20-30 years ago.)

I’ll take the bad to get the good, however. I read of lot of technology stuff, and the level of their best writers is well below baseball’s best.

@Chris–
I know you asked cur68 and not me but let me try to answer anyway. You have only my word that I have been very involved with drug testing for many years in my medical practice as my bona fides, so take it for what you will.

You say the possibilities for Braun’s sample in 2011 were that he took the stuff, that it magically appeared in the sealed urine sample, or that it was tainted/he was framed. I agree with your assessment. Those are the possibilities. The problem is that they should not be the possibilities. We can safely exclude magic, but when proper handling and chain of custody procedures are not followed, it introduces the tainting possibility. Samples can theoretically be switched and relabeled, for example, obviating the need to tamper with the original specimen. I am not saying that happened, but for legal issues of guilt/innocence all that is required is the introduction of reasonable doubt. Failing to follow procedures introduced that doubt, so Braun won his appeal before the arbitrator. If procedure had been followed, there would have only been two possibilities: he did it or the excessive testosterone appeared by magic.

Now, you can call that a technicality, and I won’t argue about it. I don’t think that technicality is actually a legal term anyway, so such an argument would just be over how to define the term. Either way, the procedural screw up means it’s pointless to rehash what Braun may or may not have done. His slate remains clean until there is proof of some new infraction. His name showing up in Bosch’s records is not proof.

The PED era actually started in the 1800s and there is no evidence that it ever took a holiday. What we are in now can more accurately be called the PED outrage era, every baseball era has featured players taking something in an attempt to enhance performance, and steroids have been used by baseball players since at least the 1960s (probably the 1950s).

This is stupid. The cited article is probably poorly written for not making it clear that Braun, through his attorneys, should clear his name by releasing records.

Lawyers do very little in a legal sense. Their clients act through them. So yes, Braun would have to consent.

What a waste of a blog post.

If Braun wants to clear his name, he can release the type of records discussed. If he doesn’t feel he needs to, baseball writers are free to speculate on the reasoning for such decision. He can live with being dubbed a suspected PED user.

I can see training a porpoise to click and wheee and zzzzzrrrrrtttttttt in a syntactically consistent manner. I can see training a flatworm to retreat from a flashing light. I can see teaching a chimpanzee sign language. I can see teaching a pet octopus to distinguish between visual symbols on a pull-cord to feed itself some shrimp. I myself have taught an indigo snake to sit up and beg for a piece of calve’s liver. All of this has been tested and proven.

However, I can’t imagine anything as futile as trying to explain legal technicalities – or why the entire body of jurisprudence from Mesopotamia onward – consists of nothing but “technicalities” to anything with a cerebral cortex as atrophied as a spawrtsrighter’s.

“If Bosch was a consultant — and one of Braun’s attorneys did admit that he spoke with Bosch, even if he said Bosch’s help was ‘negligible’ — the communications between them are protected by the attorney-client privilege and by the work product privilege.”

The reporter didn’t suggest that the substance of any “communications” be disclosed, merely records corroborating the fact that Bosch was retained. To the extent the identity of Braun’s consultants was privileged, he waived such privilege by already disclosing it himself. Therefore, the lawyer would not be revealing any privileged information by merely confirming what his client has already voluntarily disclosed.

Wow, that’s great that the beat writers have the kind of power to demand things like this. Nothing’s been proven, so leave it alone. If facts come to light, then procede from there. There has to be more positive baseball stories out there for them to report on.
-Mikehttp://minoringinbaseball.com/